FEDERAL COURT OF AUSTRALIA

DHT16 v Minister for Immigration and Border Protection [2019] FCA 1073

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the First Respondent’s costs of and incidental to the appeal to be taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1    The appellant is a national of Vietnam who came to Australia on a Short Term Visitor visa on 10 March 2010. That visa expired on 10 April 2010 but the appellant has remained in Australia, as an unlawful non-citizen, ever since. She has engaged in a variety of employments.

2    On 29 May 2015, the appellant was arrested and, with another, charged with the offence of cultivating a commercial quantity of a controlled plant (cannabis). She was refused bail and remained in custody until 17 June 2016 when the prosecution withdrew the charge.

3    On 27 May 2016 (three weeks before her discharge from custody), the appellant applied for a Protection visa. On her release from prison, she was immediately taken into immigration detention. As some stage not identified in the materials, the appellant was granted a visa permitting her to reside in the community.

4    On 14 July 2016, a delegate of the Minister refused the grant of a Protection visa. That decision was affirmed by the Administrative Appeals Tribunal (the Tribunal) on 5 October 2016.

5    The appellant then sought judicial review in the Federal Circuit Court (the FCC) but was unsuccessful: DHT16 v Minister for Immigration [2018] FCCA 2725. She now appeals to this Court against the dismissal of her application for judicial review.

The Tribunal decision

6    The appellant claimed to be entitled to protection as a refugee under s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), or to complementary protection under s 36(2)(aa), on multiple bases. She claimed that, if she returns to Vietnam:

(i)    she will be subjected again to serious domestic violence from her husband, from which the authorities in Vietnam will be unable to protect her;

(ii)    she will be forced by her husband to engage in prostitution and, again, the authorities in Vietnam will be unable to protect her from this; and

(iii)    she will be persecuted on account of her Catholic faith.

7    The Tribunal member rejected the appellant’s claims. She considered that the appellant’s account was not credible. The Tribunal member made a positive finding that the appellant had come to Australia voluntarily to earn money which she could send back to Vietnam.

8    The Tribunal referred to five matters as supporting those conclusions:

(a)    although the appellant had been in Australia for five years, she had not made an application for a Protection visa until after her arrest. The Tribunal member considered that, by reason of the appellant having found work in Australia, having joined a church community, and having obtained a driver’s licence, she had had the social contacts and ability to seek help and advice about applying for a Protection visa earlier, if she had had a genuine fear of returning to Vietnam;

(b)    there was a “significant inconsistency” between earlier claims by the appellant that her husband had, before she left Vietnam, forced her to become a prostitute, and her evidence in the Tribunal to the effect that, although her husband had tried to force her to become a prostitute, she had been able to resist doing so, at [17]. The Tribunal member seemed, implicitly, to accept that the appellant had not in fact worked as a prostitute in Vietnam. She considered that the appellant’s “willingness in written claims to fabricate past work as a prostitute is indicative of an inclination to exaggerate or fabricate stories about her life in Vietnam, in order to fabricate claims to meet the criteria for a Protection visa”;

(c)    the appellant’s claim that she had had only one year of schooling in Vietnam at the age of eight years was inconsistent with her claim that she had worked selling life insurance in Vietnam in 2009 and 2010 before coming to Australia. The Tribunal member did not accept that a person with only one year of primary school education would be able to complete the life insurance training course and to work selling life insurance;

(d)    the appellant’s claim to be fearful of her husband and his violence was inconsistent with the fact that she had maintained regular contact with him since coming to Australia and, indeed, had regularly sent money to him. The member rejected the appellant’s evidence that she had done so only because the husband had threatened to harm their daughter if she did not. The Tribunal found instead that the appellant had maintained contact and sent money back to Vietnam because that is what she had always intended to do on coming to Australia. The member considered that the appellant had “exaggerated or fabricated her husband’s gambling, and alcohol addictions and [had] fabricated the claims that he [had] forced to her send money”; and

(e)    finally, the Tribunal rejected the evidence of a witness called by the appellant who said that she had overheard telephone conversations in which the appellant’s husband had been demanding and threatening.

9    The Tribunal member then concluded:

[24]    [T]here are too many inconsistencies and some fabrications in the [appellant’s] account for it to be credible. The Tribunal does not accept the [appellant] fears violence from her husband as she claims, and does not accept she fears he will harm her if she returns. The Tribunal finds the [appellant] came to Australia to work and earn more money. When she has sent money to Vietnam, this was done voluntarily and was part of her reason for coming to work in Australia.

10    It was the Tribunal’s finding of the “significant inconsistency” in the second of the listed matters which gave rise to one of the grounds on which the appellant sought judicial review in the FCC and the original ground in her appeal to this Court. Because of its importance to the appellant’s submissions, I will set out in full the Tribunal’s findings on this topic.

[17]    The Tribunal is concerned by a significant inconsistency in the applicant’s claims, which leads it to doubt the veracity of her claims generally. In her written claims (f.49 of the Department file) she stated the following:

‘[My husband] forced me to become a prostitute …

‘My husband … often beat me and forced me to make money for him by become [sic] a prostitute …

‘If I return to Viet Nam (sic) my husband will beat, kill me and force me to return to my old life which I always feel disgusting and shamed about. It is because he wants me to make money to pay for his debt’.

[18]    The applicant again made this claim in a written statement provided with her application (f.45 of the Department file). However, at the Tribunal hearing she said he husband had suggested she work as a prostitute, however she was always able to resist the suggestion. She denied ever working as a prostitute. She said she worked as a cleaner or in the markets instead. She also claims to have worked selling insurance.

[19]    The Tribunal finds her willingness in written claims to fabricate past work as a prostitute is indicative of an inclination to exaggerate or fabricate stories about her life in Vietnam, in order to fabricate claims to meet the criteria for a Protection visa.

The appellant’s case in the FCC

11    In the FCC, senior counsel for the appellant argued two substantive matters. The first was that the Tribunal member had been wrong in concluding that there was a “significant inconsistency” in the appellant’s prostitution claims because, on a fair reading of those claims in context, it could be seen that the appellant had always claimed only that she had been threatened by her husband to work as a prostitute. Counsel submitted that this misunderstanding by the Tribunal meant that its decision lacked a probative basis, was based on reasoning which was illogical or perverse, or was otherwise legally unreasonable.

12    Counsel’s second principal submission was that the Tribunal member had failed to comply with the requirements of s 425 of the Act because she had not put the appellant on notice that the inconsistencies she found would be an issue in her decision.

The FCC judgment

13    The reasons of the FCC are lengthy and detailed. The FCC Judge identified each of the previous statements made by the appellant with respect to the prostitution claim (at [31]-[38]) and also recited the evidence given by the appellant in the Tribunal on the prostitution issue (at [41]-[42]).

14    Although the FCC Judge did not make an express finding, it was common ground that his reasons revealed an assumption that the Tribunal’s finding of an inconsistency in the appellant’s accounts was erroneous.

15    After referring to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44], the FCC Judge noted that there may be circumstances in which a finding of fact by an administrative decision-maker, even when based on an assessment of credit, may be characterised as legally unreasonable and thus give rise to jurisdictional error, at [80]. The Judge referred to BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [31]-[38] and to DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175, in which many of the principles bearing upon judicial review of factual findings based on the Tribunal’s assessment of an applicant’s credit were summarised. His Honour then said that:

[A]ny purported failure of the Tribunal, in its assessment of the applicant’s credit, arising from its apparent misconstrual of her evidence regarding the prostitution issue, must be central or critical to its overall findings regarding her credit.

(Emphasis in the original)

16    The Judge derived this proposition from Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 in which Wigney J said at [56]:

An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. …

17    The Judge then concluded that the evidence concerning the prostitution claim was not critical to the Tribunal’s decision. This was so because of the other findings regarding the appellant’s credit, each of which the Judge considered was independent and “sufficient to found a conclusion that she was not in need of protection in Australia and had come to this country for other reasons”, at [89]. The Judge went on to say:

[91]    The prostitution issue was one matter, amongst several, which led the Tribunal to this conclusion. It – the prostitution issue – was not dispositive of the application but rather was an objectively minor matter of fact for the Tribunal. In addition, there was other factors at play, which were individually supportive of a finding that the applicant was not likely to come to harm, at the hand of her husband, if she returned to Vietnam. These included the fact of her remittal of money to him in Vietnam.

18    Finally, the FCC Judge rejected the claim that the Tribunal had not discharged its obligations under s 425 of the Act. His Honour noted that the appellant had been on notice of the requirement for her to be candid with the Tribunal and that her overall credibility was in issue before it. The appellant did not pursue this complaint on the appeal and it is not necessary to mention it further.

The appeal to this Court

19    The appellant’s grounds of appeal and submissions underwent some modification and refinement as the appeal progressed.

20    The Amended Notice of Appeal filed on 28 March 2019 contained a single ground consisting of two parts. These were that the FCC Judge had erred:

(a)    in not determining whether the Tribunal’s finding at [17] that there was a significant inconsistency in her claims was illogical or irrational, and in failing to find that it was; and

(b)    in not finding that the Tribunal’s illogical or irrational finding was material to its ultimate conclusion, because it could not be severed from the Tribunal’s conclusions on credit, with the consequence that the Tribunal could, realistically, have reached a different result.

The submission of no inconsistency

21    Senior Counsel for the appellant submitted first that there was no inconsistency between the appellant’s previous statements and her evidence in the Tribunal concerning her engagement in prostitution in Vietnam.

22    The evidence which the appellant gave in the Tribunal (through an interpreter) on the topic was:

 Q:    Did you ever work in prostitution in Vietnam?

A:    No, but there’s a time when my husband forced me to do it, but I refused because at the time I have a small child and I was very small in stature just about 28 kg (sic).

Q:    So I need you to be clear about this. Did he just tell you and threaten you, but you didn’t work in prostitution, or did you actually work as a prostitute?

A:    Yes, my husband, because at that time we are very tight in finance actually, and my husband, in a way forced me, talked me in to do it. Inside myself I want to do it as well because we are, as I said, very tight in finance. But the thing is I have a small child at that time and I’m very small and skinny only 38 kg (sic). So in the end I refused to go.

Q:    So if that’s the case why have you told the Dept of Immigration … why have you said that you were made to work as a prostitute in Vietnam if you never were?

A:    I did say to them that I was forced by my husband but I refused to do it. That’s why I have to escape from my husband, with my child, and go to living in the market.

23    In a document accompanying her application for a Protection visa, the appellant had made the following statements (quoted verbatim) on the topic concerning her husband’s pressure on her to work as a prostitute in Vietnam. The statements were made in responses to questions in the printed application form:

Q90:    What do you think will happen to you if you return to Viet Nam?

I strongly believe that [my] husband might try to kill me if I return, or he will force me to become a prostitutes (sic) again to make money for him. …

Q91:    Did you experience harm in that country(s)?

… Then I married my husband who kept harmed me in many ways such as threaten, beat and force me to become a prostitutes (sic). …

Q92:    Did you seek help within the country after the harm?

… I did not know what to do because I did not know anything about Sai Gon and too young at that time to know that I should report to police. About my husband who often beat and forced me to make money for him by become (sic) a prostitute, I was scared to report that to police as I was so ashamed and scared that my husband would know and he will beat me and my daughter to dead (sic).

Q93:    Did you move or try to move to another part of that country(s) to seek safety?

Yes … when my husband beat and forced me to be a prostitutes (sic) I often took my daughter with me to hide near [name deleted] market. There was a woman whose name is [name deleted] had let me hide in her house near [name deleted] market.

Q94:    Do you think you will be harmed or mistreated if you return to that country(s)?

Yes.

If I return to Viet Nam, my husband will beat, kill me and force me to return to my old life which I always feel disgusting and ashamed about. It is because he wants me to make money to pay for his debt and his addictive (sic) from gambling and alcohol.

24    A separate statement made by the appellant which accompanied her application for the Protection visa included these statements:

[My husband] is addicted to alcohol and gambling, he took my money and beat me with no mercy, and more miserably, he forced me to become a prostitute to make money for him. I had to hide from him with my little daughter, from place to place.

…

I fear a reignited painful past and I fear to live like that again, I am scared of my husband who can hit or force me to become prostitute to make money for him, and he can kill me if I refuse to do so.

25    When interviewed by the Minister’s delegate, the appellant gave the following responses:

 Q:    How often did [your husband] beat you and ask for money?

 A:    Every day the same.

 Q:    When did he make you become a prostitute?

 A:    After I gave birth to my daughter.

 Q:    How did he make you become a prostitute?

A:    He said: “you go and work as a prostitute to make money”. Because he asked me I took our daughter and I worked as a household cleaner and also a cleaner at a food stall.

26    Senior Counsel for the appellant also drew attention to the assessment by the Minister’s delegate of this evidence:

I also do not accept the applicant’s claims that her husband threatened to force her to become a prostitute.

He submitted that this finding was significant because it indicated the delegate’s understanding that the appellant’s claim was that her husband had threatened to force her to act as a prostitute rather than that she had actually worked as a prostitute.

27    Senior Counsel’s first submission was that there was no inconsistency between the appellant’s earlier statements and her statement in the Tribunal. He submitted:

The appellant had simply not made the claims that the Tribunal now attributed to her, and had not changed them.

28    On this basis, counsel submitted that it had not been “open” to the Tribunal member to find that the appellant had fabricated her claims and that she was a person who is willing to fabricate claims.

29    Counsel then went on to submit that the Tribunal’s finding concerning the existence of an inconsistency was irrational or illogical and that that finding had been material to the outcome.

30    Senior Counsel sought to bolster the submission of irrationality in relation to the finding of inconsistency by emphasising that the Minister’s delegate had understood the appellant to be saying only that her husband had threatened to force her to become a prostitute, and not that she had in fact worked as a prostitute.

31    That submission cannot succeed. The Tribunal member was not bound by the delegate’s assessment and reasoning: Shi v Migration Agents Registration Authority [2008] HCA 31, (2008) 235 CLR 286 at [97]-[100] (McHugh and Heydon JJ); BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76 at [35]; SZWBY v Minister for Immigration and Border Protection [2018] FCA 151 at [15]. Nor was the Tribunal member even bound to take into account the delegate’s assessment and reasoning. Instead, the Tribunal was to undertake its own independent review of the materials and to reach its own decision on the materials including the evidence which the appellant gave before it: Shi at [98], [141]; Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 at [10].

32    Further, and in any event, the Tribunal member did have regard at [12] of her reasons to the delegate’s decision and to the reasons why the appellant’s application for a visa was rejected.

33    In his oral submissions, Senior Counsel acknowledged that the appellant’s earlier statements were “ambiguous” as to whether she had in fact worked as a prostitute. In particular, he acknowledged (in my view, appropriately) that the appellant’s responses to Questions 90-94 could reasonably be understood as indicating that she had in fact worked as a prostitute.

34    In those circumstances, it would not have been possible for the FCC Judge to have found illogicality or irrationality in the Tribunal’s finding of inconsistency between the appellant’s statements in the Tribunal and her earlier statements. Whether or not there was such an inconsistency depended on the characterisation of the appellant’s earlier statements. That characterisation was a matter for the Tribunal and the conclusion it reached on that issue was one which was reasonably open to it.

The finding that the inconsistency was “significant”

35    Recognising the difficulties with the submissions just addressed, Senior Counsel sought (and was granted) leave during the appeal hearing to amend the Notice of Appeal so as to raise the following grounds in lieu of those contained in the Amended Notice of Appeal filed on 28 March 2019:

The learned Circuit Court judge erred in:

1.1    not finding that the Tribunal had, in finding that the inconsistency was “significant” (at [17]) made a finding that was irrational, illogical and not based on logical grounds;

1.2    not finding that the Tribunal’s finding that the inconsistency was significant meant that:

  (a)    the appellant had fabricated; and

(b)    the tendency to fabricate was;

in itself, irrational, illogical and not based on logical grounds;

1.3    thereby finding that the Tribunal had not formed its state of satisfaction pursuant to s 65 and committed a jurisdictional error; or

1.4    in the alternative to paragraph 1.3, not finding that the above irrational findings in paragraphs 1.1 and 1.2 were material to its ultimate conclusion and thereby led to jurisdictional error.

36    The leave was granted even though the appellant had not advanced all these grounds in the FCC. Leave was also granted to the appellant to argue these additional grounds.

37    As is apparent, the amended grounds did not rest on the finding of inconsistency. Instead, the focus of the first part of the amended grounds was on the Tribunal’s characterisation of the inconsistency in the appellant’s accounts concerning work as a prostitute as “significant”. The appellant’s revised complaint was that it had been illogical or irrational (and therefore unreasonable) of the Tribunal member to characterise the inconsistency as “significant”. This had not been the focus of the appellant’s submissions in the FCC and, understandably, the FCC Judge had not addressed them.

Relevant principles

38    It is not necessary to refer at length to the authorities indicating that the power of decision-making vested by a statute does not authorise an exercise of the power which is illogical, irrational or which lacks an evident and intelligible justification. It is sufficient to refer to Li at [63]-[67] (Hayne, Kiefel and Bell JJ) and [90] (Gageler J); and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [8]-[12].

39    The illogicality or irrationality giving rise to jurisdictional error may be seen in the process of reasoning culminating in the decision, as well as in the outcome itself: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [39], [119]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, (2013) 212 FCR 99 at [150]-[151]; Singh at [44]; Stretton at [13]; CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [58]-[59] and see the authorities referred to therein.

40    A finding based on credit may, despite the usual strictures bearing on judicial review of such findings, be characterised as legally unreasonable and thereby give rise to jurisdictional error: BZD17 at [32]-[38]; DAO16 at [30] and see the authorities referred to therein. The Full Court in DAO16 endorsed the following passage in the reasons of Wigney J in SZUXN at [56]:

An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny … Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error … That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

(Citations omitted)

41    The Full Court in DAO16 then continued:

[30]    …

(5)    A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

42    The FCC Judge referred to these authorities as stating the principles he was to apply in determining the appellant’s application for judicial review on the application before him.

43    Senior Counsel for the appellant emphasised that the satisfaction of the member to which s 65 of the Act refers must be rational and not based on findings or inferences of fact which are not supported by logical grounds: SZMDS at [101]-[104]. He submitted that, when the illogicality or irrationality occurs at the point of satisfaction (relevantly under s 65), then jurisdictional error will be established because a necessary jurisdictional fact (absence of irrationality in the state of satisfaction) will not exist: SZMDS at [119].

44    However, illogicality or irrationality in a decision-maker’s reasoning will constitute jurisdictional error only if the reasoning was material to the final decision, in the sense that it deprived the applicant of the realistic possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [30]-[31]; CGA15 at [59].

Ground 1.1

45    Counsel submitted that it had been irrational of the Tribunal member to assess the inconsistency as “significant”. In turn, that finding meant that the Tribunal’s further findings that the appellant was willing to fabricate past work as a prostitute and that she had an “inclination” to exaggerate or fabricate stories about her life in Vietnam were themselves illogical or irrational.

46    The submission that the characterisation of the inconsistency as “significant” was irrational rested, as I understood it, on the proposition that the Tribunal member had not had regard to the fact that the appellant’s earlier statements were self-evidently made by a person for whom English is a second language and without regard to “the entirety of the context”. The proposition implicit in this submission was that the absence of any mention by the Tribunal of that matter meant that it was a circumstance to which the member had not adverted. This seemed to rest in turn on a further proposition, namely, that a rational reasoning process had required regard to that circumstance.

47    Several of the appellant’s submissions seemed to proceed on the implicit assumption that the Tribunal member had used the adjective “significant” in the sense of “major” or “substantial”. Although the matter is not clear, I doubt that that is so. Instead, the Tribunal member seems to be conveying that she regarded the inconsistency as material, in the sense that it was an appropriate matter to which to have regard.

48    In my opinion, there are several reasons why Ground 1.1 ought not be accepted.

49    First, while it is true that the Tribunal member did not advert expressly to the circumstances in which the earlier statements had been provided, there is no basis upon which it could be held that the Tribunal member overlooked that English was not the appellant’s first language. That was obvious from the very fact that the appellant gave her evidence before the Tribunal with the assistance of an interpreter. It was also obvious from the very manner in which the appellant’s earlier statements were expressed. Related to this is the fact that the appellant had had assistance in making her application for a Protection visa. She disclosed that that was so in the application itself. It is commonly the case that English is a second language for those applying for Protection visas, and the Tribunal member can be taken to have known that that is so.

50    Secondly, the appellant had made more than one statement, expressed in different terms, which seemed to indicate that she had in fact engaged in prostitution. The repetition of the statements militated against the possibility that the inconsistency found by the Tribunal member was attributable to communication difficulties. True it is that the Tribunal member did not refer expressly to this consideration but it is nevertheless a matter bearing on the rationality of her conclusion.

51    Thirdly, the significance to be attached to any inconsistency of which the Tribunal is satisfied is necessarily a matter of evaluation and one about which reasonable minds may differ. A mere disagreement by the Court with the Tribunal’s assessment of the significance of an inconsistency does not mean that the latter was irrational or illogical. As has been observed on more than one occasion, courts should be wary of too readily finding the existence of illogicality and irrationality because to do so may lead them to substitute their own assessment of the merits of the case for that of the entity entrusted with that task, namely, the Tribunal: Stretton at [8], [12]; DAO16 at [30(5)].

52    In my view, it was open to the Tribunal to assess the difference between a claim that the appellant had actually been forced to work as a prostitute, on the one hand, and a claim that she had been subjected, unsuccessfully, to threats with a view to forcing her to work as a prostitute, on the other, as significant in the sense discussed. In the former scenario, the threats and force had succeeded, and the appellant had had to engage in conduct which, by reason of her personal principles and moral scruples, she found shameful. In the latter case, the appellant had been able, albeit with difficulty, to resist the pressure. Moreover, the difference between the two scenarios was directly relevant to the assessment of the risk that the appellant would suffer significant harm, within the meaning of s 36(2)(aa) of the Act, if she returns to Vietnam.

53    Accordingly, Ground 1.1 fails.

Ground 1.2

54    Ground 1.2 raises different considerations. Senior Counsel for the appellant submitted that it was irrational or illogical for the Tribunal member to have reasoned from the finding that there was a significant inconsistency in the appellant’s account to the conclusion that the appellant had been willing, in her written claims, to “fabricate” past work as a prostitute and, further, to the conclusion that that willingness was indicative of “an inclination [by the appellant] to exaggerate or fabricate stories about her life in Vietnam” in an attempt to meet the criteria for the grant of a Protection visa.

55    The submission, as I understood it, was that there may have been explanations for the inconsistency, other than conscious fabrication by the appellant, to which the Tribunal had not adverted. That is to say, that the irrationality lay in the failure to consider, and exclude, more benign explanations for the appellant’s inconsistent accounts.

56    Counsel referred again to the fact that the earlier statements had been made in English which was a second language for the appellant. To this may be added other possibilities: the prospect that the appellant may not have appreciated fully the significance for the purposes of her application of the distinction between pressure to work as a prostitute and the actual engagement in such work; and the prospect that, in the appellant’s mind, the mere prospect of having had to contemplate work as a prostitute was as powerful as the reality so that for her the distinction between the two had become blurred.

57    The submission was that it had been irrational for the Tribunal member to move straight from the finding of inconsistency to the conclusion that the appellant had fabricated for the purposes of advancing her claim for a Protection visa, as the Tribunal member appears to have done. The irrationality is made all the more manifest, so the argument ran, by the Tribunal finding that the appellant’s fabrication of her work as a prostitute was indicative of a tendency to fabricate stories more generally in order to meet the criteria for a Protection visa.

58    I agree that the Tribunal member does appear to have concluded very readily that the inconsistency in the appellant’s accounts was attributable to a form of conscious untruthfulness, that is, fabrication, and then to the further finding that the appellant had a tendency to exaggerate. That is especially so given ordinary experience that people often make statements which are incorrect without being consciously untruthful in doing so. Courts generally exercise caution before finding that witnesses have lied even though they may not be willing to accept as reliable the evidence in question.

59    The requirement that administrative decision-making be rational and logical and based on matters having a rational basis in the evidence does not, on my understanding, require that, before reaching a given conclusion, the decision-maker advert to and exclude all the alternative logical possibilities. Reasoning may be rational and logical even though it is not nuanced. Reasoning which is superficial may, depending on the circumstances, be rational. Nevertheless, there may well be cases in which an absence of nuance, or the presence of superficiality, will be markers of a want of rationality. The assessment of whether that is so involves matters of degree in which the strength of the posited logical possibility will be an important consideration. The more obvious the potential alternative explanation on the materials, the more likely it is that it should be addressed before the conclusion is reached. As the authorities indicate, caution is required in making the assessment.

60    The gist of the appellant’s present complaint is that the Tribunal member adopted a particularly adverse view of the inconsistency and of the inferences to which it gave rise without considering a more benign alternative such as it being attributable simply to communication difficulties or perhaps to matters such as those mentioned earlier.

61    I have already referred to matters suggesting that it is improbable that the Tribunal member overlooked the potential for communication difficulties as a possible explanation for the inconsistency.

62    An assessment of the rationality of the Tribunal’s reasons requires that they be read as a whole. It should take into account that the inconsistency found by the Tribunal member was but one matter giving rise to the Tribunal’s concerns about the reliability of the appellant’s claims. The fact that the Tribunal member’s reasons identify in sequential fashion the matters which caused her to regard the appellant as unreliable should not be taken to indicate that her overall assessment of the appellant’s credibility was formed in the same sequential fashion. It may instead simply reflect the order in which the Tribunal member chose to record those matters which had led her to her conclusion.

63    In my opinion, the inconsistency found by the Tribunal, and the significance which the Tribunal attached to it, do not stand in isolation from the other matters to which the Tribunal referred. When the reasons are read as a whole, it is apparent that the Tribunal member was identifying matters which, cumulatively, led her not to accept the appellant’s claims. That being so, it would not be appropriate for the Court, when considering this Ground to proceed on the basis that the other matters which the Tribunal member identified did not also bear on her assessment of the significance of the inconsistency in the prostitution account and of the reasons for that inconsistency. In this respect, it is pertinent that the Tribunal also found that the appellant had exaggerated or fabricated her husband’s gambling and alcohol addictions and had fabricated the claims that her husband had forced her to send money to him.

64    In these circumstances, I do not consider that it should be concluded that it had been irrational, in the sense of being legally unreasonable, for the Tribunal member to reach her conclusion without adverting to the other possibilities mentioned earlier.

65    For these reasons, I consider that the appellant has not established the matter on which Ground 1.2 is based.

Ground 1.3

66    The appellant’s failure to establish Grounds 1.1 and 1.2 means that she does not establish Ground 1.3.

Ground 1.4

67    This Ground too depends on the Court accepting that at least one of the findings impugned in Grounds 1.1 and 1.2 was irrational. Because that has not been established, this Ground also fails.

68    I note, however, that the appellant’s submission on this topic also underwent some development during the course of the appeal. The appellant referred to the statement of Wigney J in SZUXN at [55] that “[e]ven if an aspect of reasoning, or a particular fact finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result …”. He noted that this statement accorded with the position stated in Hossain and that that position had been applied by the Full Court with respect to irrational findings in CGA15.

69    However, in the oral submissions, counsel submitted that in the present case, considerations of materiality were not appropriate. He submitted that, when the issue is whether the formation of the state of satisfaction required by s 65 is affected by irrationality, the materiality or otherwise of the impugned step in the reasoning process does not arise or will arise only rarely. That is because an error going to the formation of the state of satisfaction required by s 65 will nearly always be material. Given my earlier findings, it is not necessary to address this submission, beyond noting that it appears inconsistent with the decision in CGA15 at [58]-[59].

70    In case this matter goes further, however, I record my view that the multiple bases upon which the Tribunal member found the appellant’s account to be implausible would make it difficult for her to establish that the Tribunal’s error was material. As counsel for the Minister submitted, there is not a realistic possibility that, in the light of the many other adverse findings made by the Tribunal member, any error with respect to the appellant’s account on the prostitution issue would make a material difference. This is so despite the statement of the Tribunal in [24] of the reasons that there were “too many inconsistencies and some fabrications” in the appellant’s account for it to be credible. I agree that the Tribunal seems to be referring here to the cumulative effect of her earlier findings. However, in context, it is difficult to see that, if the findings concerning the significance of the inconsistency, and the inferences which the Tribunal drew from it were excluded, there was a reasonable possibility of the outcome having been different.

71    The findings in respect of Grounds 1.1 and 1.2 mean that Grounds 1.3 and 1.4 also fail.

Conclusion

72    For the reasons given above, I consider that the appellant has not established error in the judgment of the FCC, and the appeal must be dismissed. The appellant is to pay the costs of Minister on the appeal to be taxed in default of agreement.

Associate:

Dated:    10 July 2019